Equality On Trial

American Bar Association may ban gay and trans panic defenses

June 4, 2013

By Scottie Thomaston

Community/Meta Hate Crimes LGBT Legal Cases Transgender Rights

By Scottie Thomaston

Marco McMillian, whose murderer floated ‘gay panic’ defense. Attribution: The New Civil Rights Movement

In August, the American Bar Association’s House of Delegates will consider a resolution that would minimize or eliminate use of the “gay panic” and “trans panic” defenses by defense attorneys. That legal strategy is most prominently associated with the murder of Matthew Shepard, and it was used in the trial of the murderer of Lawrence King. Essentially, perpetrators of violent crimes against LGBT people are defended under the theory that they committed the crime because of the victim’s LGBT identity, so they’re not responsible for their crimes. In the trial of Matthew Shepard’s killer, the defense team asserted that the murder was caused by Shepard, because, they said, he made a pass at the murderer, making him uncomfortable. (The “gay panic” defense was eventually barred by the judge in that trial.) In the Lawrence King trial, the defense team made the same basic argument: King was flamboyant and that caused McInerney his killer to shoot him in class. The trans panic defense asserts that a transgender person’s identity is so shocking it can lead someone to commit violent crimes against them, such as in the case of Angie Zapata’s killer.

Gay and trans panic defenses were popular in past decades but less successful in recent years. Still, they promote the idea that a LGBT person’s identity is a threat, and is responsible for crimes committed against them.

The resolution, if passed, would disallow the defense in court; the resolution also requires training for judges and lawyers, and jury instruction.

The proposal was submitted by the National LGBT Bar Association, and the ABA’s Criminal Justice Section will take it up at their annual August meeting. The National LGBT Bar Association’s executive director commented on the importance of their resolution:

“This resolution puts an end to a longstanding injustice in our legal system and gives a voice to countless lesbian, gay, bisexual and transgender victims of violence, a voice we never hear because they are no longer here to speak for themselves,” said D’Arcy Kemnitz, executive director of the LGBT Bar.
[…]
“We have been fighting against gay and trans panic defenses for more than 15 years,” said Kemnitz. “We must protect the LGBT community by refusing to allow defendants to use a victim’s sexual orientation or gender identity to justify their heinous crimes.”

As recently as this year, after the murder of a gay, black mayoral candidate in Mississippi, lawyers for the defense floated the idea of saying the murder was committed because of gay panic.

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